1. ' Applicant Shah Muhammad Khan, who is nominated as one of the accused in Crime No209/92 of Police Station Gadap under section 188/34, P.P.C. Pending in the Court of Deputy Commissioner and S.D.M., Karachi (East), seeks quashment of the same. Allegations in the F.I.R. Lodged on behalf of the State by Raja Muhammad Ilyas, S.H.O. Police Station Gadap Karachi are, that the applicant and co- accused were removing sand from Sughan Nadi, Saleh Muhammad Goth, having violated section 144 of Cr.P.C., which was imposed in the area under orders of the District Magistrate on 17-9-1992, whereby the removal of sand from the said area was prohibited. A case under section 188/34, P.P.C.
2. Was registered against the applicant and co-accused as stated above.
3. ' The contention of the learned Advocate for the applicant mainly is, that the order under section 144 of Cr.P.C. Was passed by the District Magistrate (East) and if there is any violation thereof, punishable under section 188 of P.P.C., the complaint had to be registered either by the District Magistrate himself or by any one to whom he is subordinate. In the instant case the complaint has been lodged on behalf of the State by the S.H.O. Raja Muhammad Ilyas of Police Station Gadap, which is illegal. He has referred to the provisions of section 195 which reads as under:-- "S. 195(1). No Court shall take cognizance.--- (a) of any offence punishable under sections 172 to 188 of the Pakistan Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate."
4. ' Such complaint, according to the learned Advocate, having not been filed by the District Magistrate or by some other public servant to whom the District Magistrate is subordinate, the very cognizance taken on the basis of the F.I.R. Lodged by the S.H.O. Is illegal and the continuance of proceedings before the District Magistrate would be an abuse of process of law. In support of this contention he has referred to Dr. Ghulam Qadir v. The State 1976 P Cr. L J 922. In this case order under section 144 was promulgated by the District Magistrate but a complaint for its violation was filed by the Resident Magistrate. The proceedings, in the circumstances, were quashed. Reliance is also placed on Nizam Din Samejo and others v. Sub-Divisional Magistrate and others 1988 P Cr. L J
988. In this case, the complaint under section 188 of P.P.C. Was filed neither by the public servant concerned nor by other public servant to whom he was subordinate. It was held that the proceedings were hit by the provisions of section 195(1)(c) of Cr.P.C. And the proceedings were quashed. Reliance is also placed on Nasim Akhtar v. The State 1990 P Cr. L J 336, wherein also the proceedings were quashed as the complaint was submitted by a person, who was a subordinate and not a superior of the one, who had passed the order, regarding the violation of which, a complaint had been filed.
5. ' Mr. Abdul Hakeem H. Bijarani, learned AA.-G. Has supported the contention of the applicant and has argued that the cognizance taken on the basis of a complaint filed by the S.H.O. Is dearly in violation of the provisions of section 195(1)(c) of Cr.P.C.
6. In view of the case-law laid down in the referred judgments the continuance of proceedings would be an abuse of the process of the Court as the complaint regarding violation of an order under section 144 of Cr.P.C. Is not filed by the District Magistrate whose order was violated or by a person to whom the District Magistrate was subordinate. There are as many as 4 persons shown as accused in the complaint and only one of them, namely, Shah Muhammad Khan the present applicant has filed petition for quashment while the rest of the accused have not filed such petition. Since the very cognizance taken by the learned District Magistrate on the basis of complaint filed by S.H.O. Is in violation of the provisions of secticn 195(1)(c) of Cr.P.C. The entire proceedings are quashed including against the three accused, who have not filed quashment petition. For arriving at this conclusion, I am fortified by the law laid down in Mst. Hameeda v. The State and another PLD 1973 Kar.
7. 478.
8. ' As a result of the above discussion the proceedings being outcome of F.I.R. No,209/92 of Police Station Gadap are hereby quashed. The vehicles of the accused if seized may be released to them.
9. By a short order, dated 14-3-1993 the above Criminal Miscellaneous Application No,1086 of 1992 was disposed of and these are the reasons for the same.